Medical Center at Bowling Green v. N.L.R.B.
| Decision Date | 04 August 1983 |
| Docket Number | 82-1566,Nos. 82-1437,s. 82-1437 |
| Citation | 712 F.2d 1091 |
| Parties | 114 L.R.R.M. (BNA) 2159, 98 Lab.Cas. P 10,346 MEDICAL CENTER AT BOWLING GREEN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Herman L. Allison (argued), Constangy, Brooks & Smith, Atlanta, Ga., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, Miriam Szapiro (argued), N.L.R.B., Washington, D.C., for respondent.
Before KEITH and MERRITT, Circuit Judges and ALLEN, * Chief Judge.
This case is before the court upon the petition of the Medical Center at Bowling Green to review and set aside an order of the National Labor Relations Board. The order, which is reported at 261 N.L.R.B. 120 (1982), directs the Medical Center to bargain with a Nursing Union. The Board cross-petitions for enforcement of its order.
The Medical Center at Bowling Green (the Center) is a Kentucky corporation which operates a non-profit hospital. The present controversy arose from a union organizing drive by the hospital's nursing employees. The organizing campaign began on March 5, 1981 when the Kentucky Nurses Association filed a representation petition with the Board seeking certification as the exclusive bargaining representative of the Medical Center's registered nurses. On March 18, the Board conducted a hearing on the petition to determine the scope of the bargaining unit. At that time, the Center raised questions regarding whether certain job classifications should be included or excluded from the unit. Of particular concern were those employees classified as licensed practical nurses, emergency room registered nurses, home care registered nurses and unit directors. With respect to the unit directors, the Center took the position that they are statutory supervisors and should be excluded from the bargaining unit.
On April 16, 1982, the Regional Director issued a Decision and Direction of Election in which he defined the unit as follows:
All registered nurses employed by [the Center] at its Bowling Green, Kentucky hospital, excluding all other employees, all office clerical employees, and all guards and supervisors as defined in the Act.
The Director further stated: "Inasmuch as the evidence with regard to the supervisory status of unit directors is contradictory in nature, and is, in some respects, lacking in detail, I am unable to determine with any degree of certainty whether unit directors are supervisors within the meaning of Section 2(11) of the Act." Based on the foregoing, the decision specified that the seventeen unit directors be permitted to vote in the election with the proviso that their vote would be subject to challenge.
The Center filed a request on April 27, 1981 for a review of the Regional Director's Decision and Direction of Election. An objection was specifically raised to that part of the decision which permitted unit directors to vote subject to challenge. On May 14, 1981, the Board denied the Center's request, finding that no substantial issues were presented which warranted review. A secret ballot election was held that same day. The ballots revealed that ninety-four voters favored representation by the Association, and that twenty-two voters had not favored representation. There were twenty-seven challenged ballots.
Shortly thereafter, the Center filed a timely objection to the election. The Regional Director conducted an administrative investigation. On June 30, 1981, the Regional Director issued a Supplemental Decision and Certification of Representative in which he overruled the Center's objections to the election. A request for review of the supplemental decision was denied.
On October 12, 1981, the Association wrote a letter to the Center requesting collective bargaining. The Center did not comply with the request. An Unfair Labor Practice charge was filed by the union on January 13, 1982. The Regional Director issued a complaint fourteen days later. In its answer, the Center admitted that it refused to bargain, but contended that the Association was improperly certified.
A decision and Order was issued on May 12, 1982 finding that the Center violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the union. The Board ordered the Hospital to cease and desist from any unfair labor practices that interfere with, restrain or coerce employees in the exercise of their statutory rights. The Order also affirmatively required the Center to bargain with the union upon request.
In challenging the Board's order, the Center raises several issues with respect to the Regional Director's failure to determine the supervisory status of unit directors. First, the Center argues that unit directors are clearly supervisors within the meaning of Section 2(11) of the Act. The Center maintains that 355 employees are divided into nursing units. Each unit of twelve to sixteen employees is supervised by a unit director. According to the Center, some of the director's duties include scheduling, disciplining, granting leave and evaluating employees. However, the Regional Director found that the contradictory nature and lack of detail of the evidence regarding the unit directors' supervisory status rendered him unable to determine whether the unit directors were, in fact, supervisors. As the Regional Director recounts, there was conflicting evidence regarding whether the directors actually exercised basic supervisory functions such as granting leave, disciplining employees and evaluating in a manner that might affect their job tenure.
Given the Board's administrative expertise in resolving disputes concerning supervisory status, its decisions will usually not be disturbed absent an abuse of discretion. See NLRB v. Corral Sportswear Co., 383 F.2d 961, 965 (10th Cir.1967), cert. denied, 390 U.S. 995, 88 S.Ct. 1196, 20 L.Ed.2d 94 (1968). Because the record does not reveal a manifest abuse of that discretion, the Board's decision to allow the unit directors to vote subject to challenge is appropriate. Such a practice enables the Board to conduct an immediate election where, as here, it is undecided about the eligibility of a relatively small number of individuals whose votes may not affect the election. The question of eligibility may be resolved after the election through the Board's unit clarifying procedure.
Next, the Center argues that the Regional Director erred by failing to set aside the election. Here, the Center's...
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